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The Doctor and Student (1518)
Christopher St. Germain
The first question of the student whether a tenant may in conscience do waste
Stud. If tenant in tail after possibility of issue extinct do waste, whether doth he thereby offend in conscience, though he be not punishable of waste by the law?
Doct. Is the law clear, that he is not punishable for the waste?
Stud. Yes, verily.
Doct. And what is the law of tenants for term of life, or for term of years, if they do waste?
Stud. They be punishable of waste by the statutes, and shall yield treble damages; but at the Common law before the statute they were not punishable.
Doct. But whether thinkest thou that before the statute they might have done waste with conscience, because they were not punishable by the law?
Stud. I think not, for, as I take it, the doing of waste of such particular tenant for term of life, for term of years, or of tenants in dower, or by the courtesy, is prohibited by the law of reason; for it seemeth of reason, that when such, leases be made, or that such titles in dower, or by the courtesy be given by the law, that there is only given unto them the annual profits of the land, and not the houses and trees, and the gravel to dig and carry away, whereby the whole profit of them in the reversion should be taken away for ever. And therefore at the Common law, for waste done by tenant in dower, or tenant by the courtesy, there was punishment ordained by the law by a prohibition of waste, whereby they should have yielded damages to the value of the waste. But against tenant for term of life, or for term of years, lay no such prohibition, for there was no maxim in the law therein against them, as there was against the other. And I think the cause was, forasmuch as it was judged a folly in the lessor that made such a lease for term of life, or for term of years, that at the time of the lease he did not prohibit them, they should not do waste; and sith he did not provide remedy to himself, the law would none provide. But yet I think not that the intent of the law was, that they might lawfully and with good conscience do waste; but against tenants in dower, and by the courtesy, the law provided remedy, for they had their title by the law.
Doct. And verily methinketh that this tenant in tail, as to the doing of waste, should be like to a tenant for term of life: for he shall, have the land no longer than for term of his life, no more than a tenant for term of life shall, and the waste of this tenant is as great hurt to him in the reversion, or the remainder, as is the waste of a tenant for term of life; and if he alien, the donor shall enter for the forfeiture, as he shall upon the alienation of a tenant for term of life; and if he make default in a Praecipe quod reddat, the donor shall be received as he shall be upon the default of a tenant for term of life; and therefore methinketh he shall also be punishable of waste, as tenant for term of life shall.
Stud. If he alien, the donor shall enter, as thou sayest, because the alienation is to his disheritance, and therefore it is a forfeiture of his estate: and that is by an ancient maxim of the law, that giveth that forfeiture in the self case: and if he make default in a Praecipe quod reddest, he in the reversion, as thou sayest, shall be received, but that is by the statute of Westminster 2, for at the Common law there was no such resceit. And as for the statute that giveth the action of waste against a tenant for term of life, and for term of years, it is a statute penal, and shall not be taken by equity:
and so there is no remedy given against him, neither by Common law nor by statute, as there is against tenant for term of life, and therefore he is unpunishable of waste by the law.
Doct. And though he be unpunishable of waste by the law, yet nevertheless methinketh he may not by conscience do that that shall be hurtful to the inheritance after his time, sith he hath the land but for term of his life, no more than a tenant for term of life may, for then he should do as he would not be done unto. For thou agreest thyself, that though a tenant for term of life was not punishable of waste before the statute, that yet the law judged not that he might rightfully and with good conscience do waste. And therefore at this day, if a feoffment be made to the use of man for term of life, though there lie no action against him for waste, yet he offendeth in conscience if he do waste, as tenant for term of life did afore the statute when no remedy lay against him by the law.
Stud. That is true; lout there is great diversity between this tenant and a tenant for term of life: for this tenant hath good authority by the donor to do waste, and so hath not the tenant for term of life, as it is said before; for the estate of a tenant in tail after possibility of issue extinct is in this manner; when lands be given to a man and to his wife, and to the heirs of their two bodies begotten, and after the one of them dieth without heirs of their bodies begotten, then he or she that overliveth is called tenant in tail after possibility of issue extinct, because there can never by no possibility be any heir that may inherit by force of the gift. And thus it appeareth that the donees at the time, of the gift received of the donor an estate of inheritance, which by possibility might have continued forever, whereby they had power to cut down trees, and to do all things that is waste, as tenant in fee-simple might. And that authority was as strong in the law, as if the lessor that maketh a lease for term of life say by express words in the lease, that the lessee shall not be punishable of waste. And therefore if the donor in this case had granted to the donees that they should not be punishable of waste, that grant had been void, because it was included in the gift before, as it should be upon a gift in fee-simple. And so forasmuch as by the first gift, and by the livery of seisin made upon the same, the donees had authority by the donor to do waste; therefore though that one of those donees be now dead without issue, so that it is certain that after the death of the other the land shall revert to the donor; yet the authority that they had by the donor to do waste continueth as long as the gift, and the livery of season made upon the same continueth. And I take this to be the reason why he shall not have in aid, as tenant for term of life shall, that is to say, for that he cannot ask help of that maxim, whereby it is ordained that a tenant for term of life shall have in aid: for he cannot say but that he took a greater estate by the livery of seisin that was made to him, which yet continueth, than for term of life: and so I think him not bound to make any restitution to him in the reversion in this case for the waste.
Doct. Is thy mind only to prove that this tenant is not bound to make restitution to him in the reversion for the waste? Or that thou thinkest that he may with clear conscience do all manner of waste?
Stud. I intend to prove no more but that he is not bound to make restitution to him in the reversion.
Doct. Then I will right well agree to thine opinion, for the reason that thou hast made; but if thy mind had been to have proved that he might with clear conscience have done all manner of waste, I would have thought the contrary thereto, and that the tenant in fee-simple may not do all manner of waste and destruction with conscience, as to pull down houses, and make pastures of cities and towns, or to do such other acts which be against the commonwealth. And therefore some will say, that tenant in fee simple may not with conscience destroy his woods and coal pits, whereby a whole country for their money have had fuel; and yet though he do so, he is not bound by conscience to make restitution to no person in certain. But now I pray thee, ere thou proceed to the second case, that thou wilt somewhat shew me what thou meanest, when thou sayest, at the Common law it was thus or thus. I understand not fully what thou meanest by that term, at the Common law.
Stud. I shall with good-will shew thee what I mean thereby